N.Sivakumar, Trichy V. ITO, Trichy

ITA 2084/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96165 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-08-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 07-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL
• Assessee Lawyers: A S SRIRAMAN
• Keywords: Opportunity of being heard
• Section: 54; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . , ' $ , % ' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO.2084/MDS/2014 ( / ASSESSMENT YEAR: 2007-08) MR. N.SIVAKUMAR, S-5 KVM SOWBHAGYA APARTMENTS, 12, SUBRAMANIAPURAM, SRIRANGAM, TRICHY-620 006. VS THE INCOME TAX OFFICER WARD-II(2), 44, WILLIAMS ROAD, CANTONMENT, TRICHY-620 001. PAN: ADDPN8695C ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. A.S.SRIRAMAN, ADVOCATE /RESPONDENT BY : DR.B.NISCHAL, JCIT /DATE OF HEARING : 18 TH AUGUST, 2015 /DATE OF PRONOUNCEMENT : 23 RD SEPTEMBER, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX (APPEALS), TIRUCHIRA PALLI DATED 21.05.2014 FOR THE ASSESSMENT YEAR 2007-08. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL:- THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT CONSIDERING THE PROOF SUBMITTED FOR BROKERAGE PAID AT THE TIME OF ASSESSMENT. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT ALLOWING THE DEDUCTION FOR IMPROVEMENT EFFECTED BY ASSESSEE. 2 ITA NO.2084/MDS/2014 COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THE FACT THAT COST OF PROPERTY CANNOT BE LESS THAN THE AMOUNT OF LOAN SANCTIONED BY THE BANKER. COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THE FACT THAT COST OF IMPROVEMENT INCURRED IN FY 1989-90 WAS DONE PERSONALLY AND EVIDENCE COULD NOT BE RETAINED NEARLY 2 DECADES. COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THE FACT THAT COST OF IMPROVEMENT INCURRED IN FY 2001-02 WAS MADE OUT OF AMOUNT WITHDRAWN FROM PROVIDENT FUND ACCOUNT. COMMISSIONER OF INCOME TAX (APPEALS) HAD FAILED TO APPRECIATE THAT DATE OF FURNISHING OF RETURN OF INCOME-TAX CONTEMPLATED IN SUB-SECTION (2) OF SECTION 54 SHOULD ALSO INCLUDE SUB-SECTION (4) OF SECTION 139 OF THE ACT AS HAD BEEN HELD IN 339 ITR 610 AND 286 ITR 274. COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT ASSESSEE HAD PAID FOR NEW FLAT BEFORE DUE DATE SPECIFIED IN SEC.139(1) AND DEDUCTION OUGHT TO HAVE BEEN ALLOWED TO THAT EXTENT IN THE LEAST. 3. AT THE OUTSET, COUNSEL FOR THE ASSESSEE SUBMITS THAT COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT CONSID ERED THE SUBMISSIONS OF THE ASSESSEE IN RESPECT OF VARIO US ISSUES RAISED BEFORE HIM. COUNSEL SUBMITS THAT IN THE STAT EMENT OF FACTS AND GROUNDS OF APPEAL FILED BEFORE THE COMMIS SIONER OF INCOME TAX (APPEALS), THE ASSESSEE HAS MADE ELABORA TE SUBMISSIONS WHICH WERE NOT CONSIDERED AND THE ORDER OF THE 3 ITA NO.2084/MDS/2014 COMMISSIONER OF INCOME TAX (APPEALS) IS A NON-SPEAK ING ORDER. COUNSEL FOR THE ASSESSEE REFERRING TO THE GR OUNDS OF APPEAL FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) SUBMITS THAT ASSESSEE CLAIMED BROKERAGE EXPENSES AND PRODUCED RECEIPT. COUNSEL FURTHER REFE RRING TO THE GROUNDS OF APPEAL SUBMITS THAT ADVANCE WAS PAI D FOR CONSTRUCTION OF FLAT AND CLAIMED DEDUCTION UNDER SE CTION 54 OF THE ACT WHICH WAS DENIED BY THE ASSESSING OFFICER. HE SUBMITS THAT NONE OF THESE GROUNDS WERE CONSIDERED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IN HIS ORDER. 4. DEPARTMENTAL REPRESENTATIVE PLACES RELIANCE ON T HE ORDERS OF LOWER AUTHORITIES. 5. HEARD BOTH SIDES. PERUSED ORDERS OF LOWER AUTHOR ITIES. BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), AS SESSEE HAS RAISED SEVERAL GROUNDS OF APPEAL CONTENDING THA T HE HAS INCURRED BROKERAGE EXPENSES AND APPEARS TO HAVE PRO DUCED RECEIPT ALSO. IT IS ALSO THE CONTENTION OF THE ASSE SSEE THAT ADVANCE AMOUNT WAS PAID FOR CONSTRUCTION OF FLAT WH ICH WAS ELIGIBLE FOR DEDUCTION UNDER SECTION 54 OF THE ACT. HOWEVER, THE COMMISSIONER OF INCOME TAX (APPEALS) APPEARS TO HAVE 4 ITA NO.2084/MDS/2014 NOT CONSIDERED THE SUBMISSIONS AND SIMPLY AFFIRMED THE ORDER OF THE ASSESSING OFFICER. ON HEARING BOTH THE SIDES AND ON GOING THROUGH THE STATEMENT OF FACTS AND GROUNDS OF APPEAL FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEAL S), WE ARE OF THE VIEW THAT COMMISSIONER OF INCOME TAX (AP PEALS) HAS NOT CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AND NOT PASSED A SPEAKING ORDER . THUS, WE SET ASIDE THE OR DER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND RESTORE TH E MATTER BACK TO THE FILE OF THE COMMISSIONER OF INC OME TAX (APPEALS) FOR DECIDING THE ISSUES AFRESH, AFTER PRO VIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD SEPTEMBER, 2015. SD/- SD/- ( # ) ( & (# ) ( CHANDRA POOJARI ) ( CHALLA NAG ENDRA PRASAD ) * / ACCOUNTANT MEMBER ( * / JUDICIAL MEMBER ( /CHENNAI, , /DATED 23 RD SEPTEMBER, 2015 SOMU ./ 0/ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. 1 () /CIT(A) 4. 1 /CIT 5. / 5 /DR 6. /GF .